A “gag order” against former President Donald Trump could forbid him from publicly commenting on his criminal case, but it would be improper for a judge to curtail him from making statements about other topics, legal analysts say.
Considerable speculation is swirling around whether Manhattan District Attorney Alvin Bragg will seek such an order, and, if he does, whether the New York judge assigned to the case will grant it.
The charges are expected to revolve around alleged misrepresentations of hush money payments made to one or more women prior to the 2016 election, which Trump won. He denies any wrongdoing.
House Judiciary Committee Chairman Jim Jordan (R-Ohio) and House Oversight Committee Chairman James Comer (R-Ky.) said in a statement they were “deeply concerned” by reports that Bragg might seek a gag order.
“To put any restrictions on the ability of President Trump to discuss his mistreatment at the hands of this politically motivated prosecutor would only further demonstrate the weaponization of the New York justice system,” Jordan and Comer said. “To even contemplate stifling the speech of the former commander-in-chief and current candidate for President is at odds with everything America stands for.”
If Bragg does try to get Merchan to muzzle Trump, two ex-prosecutors told The Epoch Times that the judge would have to weigh the desire to insulate the legal process against Trump’s free speech rights, coupled with citizens’ rights to hear from a presidential candidate.
Other Topics Allowed
The analysts, who have no connection to the case, said they think Merchan would be out-of-bounds if he attempts to muzzle Trump from discussing other topics.Michael Bachner, a New York defense lawyer and former Manhattan prosecutor, said he didn’t think it would be enforceable. In fact, he doubts that a judge “could or would” issue such a sweeping gag order.
However, Merchan does have the power to specify what Trump, Bragg, and others directly involved in the case are permitted to disclose about the court proceedings or the evidence for and against Trump.
Ohio attorney Mike Allen said, “The judge would have to tailor the order narrowly, so as not to gag him from speaking out on other issues.”
Gag orders are generally reserved for cases that garner a lot of publicity or other cases in which “lawyers are out of control or lawyers lose control of their clients,” Bachner said.
Jail Threat Looms
In Trump’s case, the judge might allow leeway for general statements such as “I’m going to beat the charges,” Bachner said, cautioning that Trump could be thrown in jail for running afoul of any such order.Merchan “does not suffer fools lightly,” Bachner said. “In my experience with him, he will not let this turn into a circus. He will not hesitate, in my opinion, to hold someone in contempt if that person violates a rule or does something wrong.”
Allen, who is also a former judge, said that if he were asked to impose a gag order in such a case, he would refuse.
“You have to consider that Trump is in the middle of a presidential race. Even if the trial judge grants it, it will be appealed to a higher court,” Allen predicted.
Both Bachner and Allen said that, if the judge issues a gag order, it would surely apply to both the prosecution and the defense. Neither Bachner nor Allen has seen a one-sided gag order in their decades of legal experience.
Statements Against Prosecutor
“Trump’s got to be careful,” Bachner said, noting that the former president has made numerous public statements against Bragg. If any statements against the district attorney could be considered threats or interference in the case, Trump “could end up with an indictment for obstruction of the administration of justice,” Bachner said.Bachner confirmed that, if an investigation proves anyone revealed secret grand jury proceedings, criminal charges could follow. He said he knows of cases in which people have been prosecuted for breaching a promise to maintain confidentiality. Witnesses are allowed to discuss their grand jury testimony, Bachner said. But everyone else involved is bound by a secrecy oath.
Trump has also criticized Merchan, who handled other cases involving Trump’s business affairs, alleging that the judge “hates” him. Some legal wonks have said Trump’s team could seek another judge and is also likely to ask that the charges be dismissed as politically motivated, selective prosecution.
Other Restrictions Possible
Under New York state laws regarding nonviolent offenses, the former president is expected to be released on his promise to appear for future court proceedings, Bachner said.“A court can still condition your release on abiding by various dictates,” such as a gag order or a restriction on foreign travel, Bachner said.
Bragg issued a general statement confirming that Trump had been indicted. Trump and his supporters have denounced the prosecution as a witch hunt, and they assert that everyday citizens are so outraged, they are donating to his campaign to help him fight back.
The former president also faces several other legal probes.
Trump, who served as the nation’s 45th president from 2017–21, is the current frontrunner to become the Republican Party’s nominee for the 2024 election. Democratic President Joe Biden, who now holds office as the 46th president, has not yet declared whether he will seek reelection.
Whatever happens with the criminal case, Bachner said Trump needs to be aware of one thing.
“When you’re under the auspices of the court ... the judge, he is the single most powerful person you’re dealing with at this point,” he said.
